Abbott & Kindermann Land Use Law Blog

Posted at 2:49 PM on November 5, 2012 by Abbott & Kindermann

No Commitment, No "Project"

In Chung v. City of Monterey Park(October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.

The trial court found that the measure was not a “project” under CEQA and, therefore not subject to environmental review requirements, and that even if it was a “project” it would have been exempt under the ‘common sense’ exemption under CEQA Guidelines section 15061(b)(3). It also found the description of the measure as an “initiative” was irrelevant to the question whether it was properly submitted to the voters, but refused to address the issue of whether the measure bound future councils as the issue lacked ripeness. Chung appealed.

The Second District Appellate Court agreed with the trial court. It held that the measure was not a “project” under CEQA citing to CEQA Guidelines section 15378(b)(4) which defines “government fiscal activities, which do not involve any commitment to any specific project . . . ” as an activity which does not fall under the definition of a “project.” The court reasoned that because the measure’s effect is limited to the bidding process and the fact that the City can award the contract to a single provider or multiple providers as it sees fit, then the measure is a “fiscal activity” in which “the City has not committed itself to any particular course of action,” and is therefore not a “project,” citing Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified Sch. Dist.(1992) 9 Cal.App.4th 464 [holding the formation of a CFD for raising funds for future unspecified school facilities was not a “project”]; Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Assn. of Gov’ts (2009) 179 Cal.App.4th 113 [holding a sales and use tax measure to fund a non-binding list of transportation projects was not a “project”]; and Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal.App.4th 1594 [holding an MOU with an Indian tribe regarding funding for “possible public improvements” related to a casino was not a “project.”].

The court then moved on to the issue of the measure’s constitutionality, upholding the trial court’s ruling that the matter lacked ripeness. It reasoned that considering the consequences of the measure’s approval on the authority of a future council to amend the ordinance amounted to an advisory opinion since no proposal to amend or repeal it had yet to take place. Until such time, there is no actual controversy before the court.

Daniel S. Cucchi is a law clerk at Abbott & Kindermann, LLP. William Abbott is a partner at the firm. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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